Com. v. Romesburg, T.

J-S14024-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS ROBERT ROMESBURG :
:
Appellant : No. 669 WDA 2022
Appeal from the Judgment of Sentence Entered April 28, 2022
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0001335-2021
BEFORE: PANELLA, P.J., BENDER, P.J.E., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED: JULY 7, 2023
Appellant, Thomas Robert Romesburg, appeals from the judgment of
sentence of 90 days’ house arrest and 18 months of probation, imposed
following his non-jury trial conviction for one count of driving under the
influence (DUI). Appellant’s sole issue on appeal challenges the trial court’s
denial of his motion to suppress drug paraphernalia located in the center
console of his vehicle. We affirm.
On October 26, 2020, shortly before 6:00 a.m., Appellant crashed his
vehicle into a utility pole. An ambulance, along with Moon Township Police
Department Officer Cuyler Hale and Corporal James Kazmierczak, were
separately dispatched. Medical personnel arrived first. The officers observed
extensive damage to Appellant’s car: its rear axle, two wheels, and a large
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* Retired Senior Judge assigned to the Superior Court.
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portion of its drivetrain had been severed. Officer Hale testified that the
vehicle “was parked approximately 20 or 30 yards from a utility pole[.]” N.T.,
3/17/22, at 8. Officer Hale told Corporal Kazmierczak to search Appellant’s
vehicle for Appellant’s driver’s license and registration, then went to speak to
Appellant, who was receiving treatment in the ambulance. Appellant admitted
that he had been “driving at an excessive speed and lost control.” Id. at 10.
Appellant nodded off at times and appeared to be confused.
Meanwhile, Corporal Kazmierczak had already located Appellant’s
license and registration, along with syringes, a plastic spoon, a Brillo pad, a
piece of steel wool, and some empty stamp bags. Believing Appellant to be
under the influence of drugs, Officer Hale asked Appellant to submit to field
sobriety tests. Appellant had difficulty following the instructions and the tests
were stopped. Appellant then admitted he had used heroin earlier that
morning.
At some point during these events, officers checked Appellant’s
information in police databases and discovered an active arrest warrant.1
Appellant was then arrested, both for the active warrant and for the suspected
DUI offense. A tow truck was called to remove Appellant’s vehicle. Corporal
Kazmierczak testified that the policy of Moon Township Police Department is
to tow crashed vehicles.
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1 No further detail was supplied regarding the warrant.
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Appellant filed a motion to suppress the drug paraphernalia as well as
statements made while receiving treatment.2 The trial court concluded that
the officers illegally searched Appellant’s vehicle but opined that the evidence
would have been inevitably discovered during an inventory search in
connection with the tow. Appellant proceeded to a stipulated non-jury trial
and was convicted. He filed a timely notice of appeal and complied with the
trial court’s order to file a concise statement pursuant to Pa.R.A.P. 1925(b).
He now raises one issue on appeal: “Did the court below err in denying
Appellant’s pretrial motion to suppress physical evidence, given that the
warrantless inventory search of [his] car was improper, given that
immobilization rather than impoundment of [his] car was called for (with
immobilization being an action for which an inventory search is not
permitted)?” Appellant’s Brief at 3.
Our standard of review is well-settled:
Our standard of review of a denial of suppression is whether the
record supports the trial court’s factual findings and whether the
legal conclusions drawn therefrom are free from error. Our scope
of review is limited; we may consider only the evidence of the
prosecution and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record as
a whole. Where the record supports the findings of the
suppression court, we are bound by those facts and may reverse
only if the court erred in reaching its legal conclusions based upon
the facts.
Commonwealth v. Schwing, 964 A.2d 8, 11 (Pa. Super. 2008).
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2The trial court denied the motion to suppress his statements, and Appellant
does not pursue that issue on appeal.
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Both the Fourth Amendment and Article I, Section 8 of the Pennsylvania
Constitution prohibit unreasonable searches. U.S. Const. amend. IV (“The
right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated[.]”); Pa.
Const. art. I, § 8 (“The people shall be secure in their persons, houses, papers
and possessions from unreasonable searches and seizure[.]”). “Absent the
application of one of a few clearly delineated exceptions, a warrantless search
or seizure is presumptively unreasonable.” Commonwealth v. Heidelberg,
267 A.3d 492, 502 (Pa. Super. 2021) (citation omitted). The trial court relied
on the inventory search exception to the warrant requirement. Recently, in
Commonwealth v. Thompson, 289 A.3d 1104 (Pa. Super. 2023), this Court
rejected the claim that the inventory search exception was eliminated in
Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020). We discussed the
history of the exception as follows:
[The inventory search exception] is rooted in Cady v.
Dombrowski, 413 U.S. 433 … (1973), which recognized that
police officers frequently perform tasks unrelated to criminal
investigation.
....
In South Dakota v. Opperman, 428 U.S. 364 … (1976), the
United States Supreme Court announced the inventory search
exception relied upon by the Commonwealth in this case and cited
Cady’s rationale. In that case, the police lawfully impounded a
vehicle that was illegally parked. At the impound lot, an officer
observed personal items in various parts of the car. The officer
had lot personnel unlock the door and, using a standard inventory
form, began recording the contents, including what was in the
unlocked glove compartment. The officer found marijuana in the
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glove compartment and Opperman was charged with possession.
The Opperman Court concluded that the search was reasonable
as the police “were indisputably engaged in a caretaking search of
a lawfully impounded automobile.” Id. at 375…. Like Cady,
“there [was] no suggestion whatever that this standard procedure
... was a pretext concerning an investigatory police motive.” Id.at 376…. Based on Cady and other cases involving searches of
vehicles that were impounded or otherwise in police custody, the
Court determined that these types of searches are reasonable
“where the process is aimed at securing or protecting the car and
its contents.” Id. at 373….
Id. at 1108.
Citing Commonwealth v. Lagenella, 83 A.3d 94 (Pa. 2013), the
Thompson panel recognized that an inventory search is permissible only
when “(1) the police have lawfully impounded the vehicle; and (2) the police
have acted in accordance with a reasonable, standard policy of routinely
securing and inventorying the contents of the impounded vehicle.” Id. at
1101 (quoting Lagenella, 83 A.3d at 102).
Presently, Appellant argues that the first requirement has not been met,
on the grounds that he was statutorily authorized to move his car within a
reasonable time. See 75 Pa.C.S. § 3353(b)(1) (stating that an operator “shall
arrange for the removal” of a disabled vehicle left unattended on private
property without consent of owner); 75 Pa.C.S. § 7311.1(a)(1) (stating that
vehicle remaining on property without consent of owner for more than 24
hours may authorize the removal). Appellant avers that the trial court
concluded that “impoundment is automatically permitted anytime a disabled
car is involved,” which is inconsistent with the quoted statutes. Appellant’s
Brief at 11. Appellant agrees that his car could be towed notwithstanding
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those statutes if it were obstructing traffic or otherwise presented a danger to
public safety. Here, however, “Appellant’s car sat entirely off the roadway on
a grassy area[.]” Id. In other words, there was no need for the officers to
perform any kind of “community caretaking.”
Appellant argues that Lagenella, which held that a police officer could
immobilize but not impound a vehicle, supports this position. There, an officer
initiated a traffic stop and learned during the encounter that Lagenella’s
license was suspended. After issuing citations, the officer informed Lagenella
that the car would be towed since Lagenella was not permitted to drive.
Lagenella told the officer that he had a friend who could remove the vehicle,
but the officer informed him that this was not permitted by his department’s
policy. The officer then, pursuant to that policy, inventoried the contents and
discovered drugs.
Our Supreme Court held that the impoundment was unlawful and the
evidence must be suppressed. As the relevant statutory authority for
impoundment, the Commonwealth cited 75 Pa.C.S. § 6309.2(a)(1), which
applies where the person’s “operating privilege is suspended,” and directs that
“the law enforcement officer shall immobilize the vehicle … or, in the interest
of public safety, direct that the vehicle be towed and stored by the appropriate
towing and storage agent….” The “towed and stored” language was equated
to impoundment. The Court observed that, prior to a 2002 amendment, the
statute used the term “impounding” instead of “towing and storage.” It was
“unclear why the legislature chose to amend” the language, and the Court
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“discern[ed] no distinction between a vehicle which has been ‘impounded’ and
one that has been ‘towed and stored.’” Lagenella, 83 A.3d at 100. Because
Lagenella’s license was suspended, the officer by statute could only immobilize
the vehicle and did not have the authority to impound, unless it could be
“towed and stored” for public safety reasons.
Relevant to Appellant’s claim here, the Lagenella Court determined
that this “public safety” condition was not met. Id. at 101. The Court declined
to deem the impoundment lawful on that ground because the officer “offered
no testimony indicating that [the] vehicle posed an issue of public safety.” Id.
In fact, the officer agreed on cross-examination that Lagenella’s vehicle was
not disabled or damaged. Id. Nor was there any indication that the parked
vehicle impeded the flow of traffic. Finally, the Court rejected the
Commonwealth’s argument that an “immobilized” vehicle is in the lawful
custody of the police and may always be towed due to that custodial status.
Appellant argues that we must assess “whether … immobilizing the
vehicle would endanger public safety.” Appellant’s Brief at 20. Appellant
submits that there is an absence of authority on this question in our appellate
courts and asks this Court to follow Josey v. State, 981 S.W.2d 831 (Tex.
App. 1998), which states that impoundment is permitted under Texas law “if
police place the driver of the vehicle under custodial arrest and have no other
alternatives available other than impoundment to insure protection of the
vehicle.” Id. at 842. The Josey Court listed six non-exclusive factors to
consider when determining whether an impoundment was justified. Appellant
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urges this Court to do the same. He insists that “[t]he totality of the
circumstances must be examined.” Appellant’s Brief at 24. He cites several
factors that, in his view, suggest that impoundment was not necessary to
protect the public safety: his vehicle was entirely off the roadway; it was not
blocking a sidewalk or pedestrian walkway; and there is no indication that the
vehicle was likely to catch on fire or explode due to its damage. Id.The Commonwealth argues in response that the lawful authority to
impound did not derive from the statute analyzed in Lagenella. Instead,
Section 3352(c)(3) of the Vehicle Code supplies statutory authority for the
impoundment in this case:
(c) Removal to garage or place of safety.--Any police officer
may remove or cause to be removed to the place of business of
the operator of a wrecker or to a nearby garage or other place of
safety any vehicle found upon a highway under any of the
following circumstances:
....
(3) The person driving or in control of the vehicle is arrested
for an alleged offense for which the officer is required by law
to take the person arrested before an issuing authority
without unnecessary delay.
75 Pa.C.S. § 3352(c)(3). The Commonwealth points out that the authorities
arrested Appellant for the DUI as well as an outstanding arrest warrant. The
Commonwealth argues that public safety was implicated in any event, as the
vehicle was completely inoperable.
We agree with the Commonwealth that the tow was statutorily
authorized and decline to consider whether the tow was authorized for public
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safety.3 Beginning with Appellant’s argument that this Court should adopt a
“no other alternatives available” test, Appellant does not specify whether this
test should apply only if the tow was for public safety reasons, or whether it
applies even if the tow were authorized under Section 3352(c)(3).4 In
addition, we note that the Texas decision cited by Appellant in support of the
“no other alternatives available” test applied a long line of cases holding that
the Texas Constitution offers greater protection than the Fourth Amendment.
See Gords v. State, 824 S.W.2d 785, 787 (Tex. App. 1992) (“In … an
inventory search case, the Court of Criminal Appeals expressly held that the
Texas courts, when analyzing and interpreting article I, section 9 of the Texas
Constitution, will not be bound by United States Supreme Court cases
addressing comparable fourth amendment issues.”). Appellant does not cite
any authority for the proposition that Article I, Section 8 of the Pennsylvania
Constitution offers greater protection than the Fourth Amendment in this
situation. See Lagenella, 83 A.3d at 99 n.3 (“[F]or purposes of this appeal,
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3 The Commonwealth, like Appellant, appears to assume that the “lawful
impoundment” component of Opperman means that the impoundment must
be authorized by statute. We accept that conclusion for purposes of this
appeal. However, we note that other courts have stated that a lawful seizure
of a vehicle via impoundment can be justified by either statutory authorization
or by the circumstances. For example, in State v. Hygh, 711 P.2d 264 (Utah
1985), the Supreme Court of Utah explained that “lawful impoundment … can
be had either through explicit statutory authorization or by the circumstances
surrounding the initial stop.” Id. at 268 (footnote omitted). The latter ability
to impound “under the circumstances” appears to employ a totality-of-the-
circumstances type test.
4 Appellant does not cite that statute and did not file a reply brief.
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we find the Fourth Amendment and Article I, Section 8 to be coextensive.”).
We recognize that, in Thompson, supra, this Court acknowledged that
aspects of the Alexander decision may support some limitations on the
inventory search exception under our charter, but we ultimately declined to
address such arguments:
… Alexander may well support some limitations on the inventory
search exception, as expressed by the dissenting Justices in
Opperman[, 428 U.S.] at 392 … (Marshall, J. dissenting) (arguing
that, at minimum, an inventory search cannot take place if the car
owner declines; “It is at least clear that any owner might prohibit
the police from executing a protective search of his impounded
car, since by hypothesis the inventory is conducted for the owner’s
benefit.”); see also Colorado v. Bertine, 479 U.S. 367 … (1987)
(Marshall, J., dissenting) (noting that in Opperman the vehicle’s
owner was not present when the vehicle was towed; “In this case,
however, the owner was present to make other arrangements for
the safekeeping of his belongings[.]”) (quotation marks and
citation omitted). The Alexander Court’s rejection of the United
States Supreme Court’s views on the privacy interests involved in
an automobile may well support some limitations on the inventory
search doctrine. See Bertine, 479 U.S. at 386 … (“Not only are
the government’s interests weaker here than in Opperman ... but
respondent’s privacy interest is greater.”) (Marshall, J.,
dissenting). Here, however, [the a]ppellant argues that
Alexander simply eliminated the inventory search exception in
total. We thus have no occasion to address these types of
arguments.
Thompson, 289 A.3d at 1110–11.5
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5 The citation to Bertine warrants some brief additional discussion. Bertine
had been arrested for DUI and his vehicle was towed pursuant to standard
procedure. As one basis for deeming the inventory search unconstitutional,
the Supreme Court of Colorado “expressed the view that the search in this
case was unreasonable because Bertine’s van was towed to a secure, lighted
facility and because Bertine himself could have been offered the opportunity
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Thus, Appellant’s argument that we should follow Texas law amounts to
an argument that this Court should read Article I, Section 8 more extensively
than the Fourth Amendment. However, Appellant did not present such an
argument below. Consequently, we decline to conclude that the officers were
required to determine whether more reasonable alternatives existed in lieu of
impoundment that was authorized by statute. See Commonwealth v.
Bishop, 217 A.3d 833, 841 (Pa. 2019) (holding that claim arguing for
departure under Pennsylvania Constitution was waived for failing to develop
it at trial court level).
Having rejected the “no other alternative” argument, we agree with the
Commonwealth that Section 3352(c)(3) establishes a basis for the tow. As a
result, the evidence would have been inevitably discovered due to the
departmental policy to perform an inventory search pursuant to a tow. See
Commonwealth v. Bailey, 986 A.2d 860, 863 (Pa. Super. 2009) (citing
Section 3352(c)(3) as basis for tow; “Because the police … conduct routine
inventory searches whenever a car is towed, and an inventory search includes
looking into obvious storage places such as the center console, we must agree
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to make other arrangements for the safekeeping of his property.” Bertine,
479 U.S. at 373. The Court disagreed, because the reasonableness of
governmental activity “does not necessarily or invariably turn on the existence
of alternative ‘less intrusive’ means.” Id. at 374 (citation omitted). The Texas
Court of Appeals decision in Gords declined to follow Bertine. “Bertine is
not binding on this Court on State constitutional issue; it is only permissive
authority.” Gords, 824 S.W.2d at 787.
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that the gun would have inevitably been discovered absent police error or
misconduct.”).6 To the extent that Appellant argues police officers are
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6The following discussion occurred at the suppression hearing concerning
Moon Township’s towing policy:
Q. When towing a car, do you have any standard procedures on
how you handle that car before it’s taken by the tow company?
[APPELLANT]: Objection. Your Honor, best evidence for any tow
policy, would be a copy of the actual tow policy, not the witness’s
recollection.
THE COURT: He can ask if there is one. Maybe there is not one.
Q. Is there a tow policy?
A. We do have a policy. Again it depends on whether we’re
impounding the car.
[APPELLANT]: Your Honor, I would just object to this testimony
and ask directly, the best evidence for the tow policy itself would
be the actual tow policy.
THE COURT: Do you have a tow policy?
THE WITNESS: Yes and no. It depends on the policy. For
crashes[,] it’s a little different than if we’re impounding the vehicle
for law enforcement purposes. This was simple: There’s been a
crash, tow the vehicle to get it to safety.
THE COURT: So is there a policy for that?
THE WITNESS: Specifically, as far -- not a specific policy.
THE COURT: Is there a practice?
THE WITNESS: Yes. But the practice is, we call the tow of the
month if the person doesn’t have a specific tow they would want
to use. And in this specific instance, we may look through the car
to make sure that there’s nothing that could hurt the tow-truck
driver.
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required to pursue other alternatives even under that statute in cases where
the vehicle does not otherwise pose a danger to public safety, we conclude
that this argument implicates whether Article I, Section 8 should be read to
provide more protection than the Fourth Amendment. Appellant did not raise
that argument below and, thus, we find that it is waived. Bishop, 217 A.3d
at 841.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/7/2023
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N.T., 3/17/22, at 30-31.
We agree with Appellant’s comments at argument that a written policy
is preferred, as the Commonwealth must establish the existence of a towing
policy to justify an inventory search. In Bailey, President Judge Emeritus
McEwen filed a concurring opinion noting that the Commonwealth did not
produce a written policy. He joined the opinion, however, because “the
arresting officer testified, without contradiction or rebuttal, that [the] car
‘would have been towed’ and ‘an inventory search[’]” would have occurred.
Bailey, 986 A.2d at 863-64 (McEwen, P.J.E., concurring). In the case sub
judice, the officer referenced the existence of a policy, while also stating there
is not a specific policy, and also referenced “practices” for certain scenarios
(presumably those not covered by the policy). Nevertheless, as in Bailey,
the testimony that the car would have been towed and inventoried as a matter
of policy was not contradicted.
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